4A Wichita Falls Economic Development Minutes - 10/19/2023 MINUTES OF THE
WICHITA FALLS ECONOMIC DEVELOPMENT CORPORATION
OCTOBER 19, 2023
PRESENT:
Leo Lane, President § WFEDC Members
David Toogood, Vice President §
Brent Hillery §
Darron Leiker §
Stephen Santellana, Mayor § Mayor& Councilors
Paul Menzies, Assistant City Manager § City Administration
Blake Jurecek, Assistant City Manager §
Kinley Hegglund, City Attorney §
Stephen Calvert, Senior Budget Analyst §
" Chris Horgen, Public Information Officer §
Paige Lessor, Executive Legal Assistant §
Ron Kitchens, CEO § Wichita Falls Chamber of Commerce
Moriah Williams, Partner §
ABSENT: §
Phyllis Cowling, Secretary-Treasurer § WFEDC Member
1. CALL TO ORDER
Mr. Lane called the meeting to order at 2:40 p.m. He welcomed everyone, including the
mayor, city council members, and guests.
2. CONSENT AGENDA
a. Approval of Minutes (October 19, 2023)
Mr. Toogood moved to approve the Minutes as presented. Seconded by Mr. Hillery, the
motion carried 4-0.
b. Financial Report
Mr. Paul Menzies provided a financial update to the Board explaining that the expenditure
side of the budget is in the new year, but the revenue side is still in the previous year. He stated
the November sales tax payment would be paid in the next couple of weeks and would reflect
September's sales, which will close out the fiscal year. Mr. Menzies highlighted the stability in
sales tax and emphasized the positive impact of interest earnings. Additionally, Mr. Menzies
estimated approximately $11 million in unencumbered funds for new projects.
Mr. Leiker moved to approve the financial report as presented. Seconded by Mr. Hillery,
the motion carried 4-0.
WFEDC MINUTES 10/19/2023
PAGE 1 OF 4
3. PRESENTATION, DISCUSSION, AND POSSIBLE ACTION RELATED TO THE CORPORATION'S
ADOPTION OF A FUND BALANCE RESERVE POLICY, STEPHEN CALVERT, CITY OF WICHITA
FALLS
Stephen Calvert, the Senior Budget Analyst for the City, presented a draft fund balance
policy to the Board. This policy is part of a series of recommendations made in June to establish
best practices and guidelines for sound financial management, particularly in the context of
economic development.
The three key recommendations include establishing the fund balance policy (the focus of
the current presentation), developing policies and procedures, and creating summary reporting in
collaboration with the chamber.
Mr. Calvert explained the key terms in the fund balance policy. He emphasized the
importance of understanding the net position, which involves assessing assets minus liabilities,
and then delving into various layers to identify reserves for economic distress.
The fund balance includes non-spendable funds (assets that cannot be used for
obligations), restricted funds (allocated for specific purposes), committed fund balances (reserved
through formal agreements), and assigned fund balances (less formal allocations).
The central focus of the policy is on the unrestricted fund balance, which is the amount
available for spending after subtracting the aforementioned categories. The recommended target
for this unrestricted fund balance is set at 25% of annual revenue, equivalent to about three
months' worth of revenue. This reserve is intended to provide a financial buffer in times of
economic disruption.
Mr. Calvert suggested using annual revenue as the baseline measure for the 25% target,
considering it a steady source compared to annual expenses. The policy proposes that corrective
steps should be taken over several years if the balance falls below the target.
To support his recommendations, Mr. Calvert presented a historical analysis of the past
five years, demonstrating a consistent maintenance of healthy balances even without the policy
in place. He clarified that the policy aims to guide future boards rather than address current
financial concerns.
Mr. Calvert also highlighted the need for regular updates on agreements that may impact
the fund balance, ensuring a comprehensive understanding of the city's financial position.
Mr. Calvert recommended adopting the drafted fund balance policy and invited discussion
and questions from the board.
Mr. Lane inquired about the flexibility of the proposed fund balance policy in the context
of a significant one-time project that requires spending all available funds and possibly borrowing
more. Mr. Calvert explained that the policy would help set limits, ensuring adequate reserves are
maintained. Borrowed funds would be considered part of the net position but outside the
guidelines, if they exceed the recommended reserve of 25% of annual revenue.
Mr. Leiker and Mr. Lane discussed the potential impact on bond ratings and how adhering
to the policy could secure better rates, resulting in lower interest payments.
Mr. Menzies mentioned the option for the board to adopt the policy immediately or take
more time for review and discussion. Mr. Hegglund clarified that discussions on the policy would
need to occur in open sessions, not in executive sessions.
Mr. Toogood raised concerns about the policy potentially restricting actions if the fund
balance drops below the recommended threshold. Stephen Calvert clarified that the policy allows
a 24-month period to move toward rebuilding the reserve.
Mr. Leiker expressed support for the policy, emphasizing its role in demonstrating good
stewardship to bond agencies. Mr. Toogood questioned whether the policy required approval from
WFEDC MINUTES 10/19/2023
PAGE 2 OF 4
the city council, and Mr. Hegglund confirmed that it only needed approval from the board.
Mr. Lane expressed concerns about the organization being too conservative in pursuing
job opportunities. He suggested that acquiring bonds could be a relief valve for such situations.
Mr. Toogood made a motion to adopt the Fund Balance Reserve Policy. Seconded by Mr.
Leiker, the motion carried 4-0.
4. DISCUSSION AND POSSIBLE ACTION RELATED TO THE PROPOSED INCENTIVE PACKAGE FOR
MAGIC AIRE
Mr. Lane introduced the agenda item. Ms. Williams provided background information,
reminding the Board that she sought advice on supporting Magic Aire with a parking lot expansion
and repaving in a previous meeting.An agreement has been reached with Magic Aire,where they
request $75,000 to assist in covering the project costs. In return, Magic Aire commits to retaining
their current workforce of 138 employees and hiring one new full-time position by May 1, 2024.
During their peak season, they typically employ about 150 to 160 individuals.
Mr. Lane inquired about Magic Air's current employment, and Ms. Williams confirmed it to
be 138, with the potential to increase during the summer months.
Ms. Williams explained that the parking lot project itself is a little over$200,000, and Magic
Air has already invested over $560,000 in building improvements. Mr. Lane sought clarification
on whether the $560,000 includes the $200,000 for the parking lot, and Ms. Williams confirmed
that it is an inclusive amount.
Mr. Lane opened the floor for questions, and Mr. Toogood noted a potential typo in the
agreement letter, suggesting that "by May 1, 2024," might be the intended date. Mr. Kitchens
acknowledged the correction, thanking Mr. Toogood for catching the error.
5. DISCUSSION AND POSSIBLE ACTION TO AMEND THE PANDA BIOTECH PERFORMANCE
AGREEMENT
Mr. Lane introduced the agenda item. Mr. Kitchens took the lead in providing an update
on Panda Biotech's progress. He mentioned that Panda Biotech is moving forward aggressively,
with raw materials being delivered to the building and equipment installation underway. The
company is expected to start running the production line soon.
Mr. Kitchens highlighted some challenges, including a windstorm that caused damage to
materials and slowed down the building expansion for pelletizing powdered products. Despite
these challenges, Panda Biotech is on track to repay its million-dollar loan by December.
However, due to the extended timeline, the employment agreement has expired, necessitating a
restatement.
Several changes are proposed in the agreement, including a restatement of past
agreements, clarification of terms, an update on loan repayment, and an extension of the hiring
agreement for an additional year. The rail spur upgrade cost was initially estimated at $150,000,
but the actual estimate is $500,000 due to inflationary pricing. It was recommended that the
difference be split, and after negotiations, Panda Biotech agreed to $350,000.
Mr. Hegglund sought clarification on the total agreement amount, considering the rail spur
cost. Mr. Kitchens confirmed that the total liability to the board would increase by $200,000 due
to the increased rail spur cost.
Mr. Lane pointed out a spelling error in the document, suggesting that "borrower" should
replace the misspelled word in 2.4.2.
Mr. Toogood sought clarification on the million-dollar loan, confirming that it is a separate
issue being repaid with interest.
Mr. Lane provided a concise overview of the financial structure, highlighting the million-
WFEDC MINUTES 10/19/2023
PAGE 3 of 4
dollar loan as separate and the cash-for-jobs component, explaining that the new agreement
would extend the original three-year hiring agreement.
Mr. Toogood sought confirmation that the amendment extends the agreement, and Mr.
Kitchens clarified that it extends it from two to three years.
The Board discussed the proposed changes and indicated they would further discuss
specific items in the executive session.
6. EXECUTIVE SESSION
Mr. Lane adjourned the meeting into executive session at 3:06 p.m. pursuant to Texas
Government Code §§§ 551.087, 551.071, and 551.074. He announced the meeting back into
regular session at 3:25 p.m. The subjects posted in the Notice of Meeting were deliberated, and
no votes or further actions were taken on the items in executive session.
7. MOTIONS
MAGIC AIRE INCENTIVE PACKAGE
Mr. Leiker made a motion to approve an incentive package for Magic Aire's parking lot
infrastructure project in the form of a $75,000 forgivable loan with the cash up front for one year
with no interest contingent upon the Company retaining 138 full-time employees and adding one
more full-time employee within six months of the agreement. With no discussion or questions from
the public and a second by Mr. Tooqood, the motion carried 4-0.
PANDA BIOTECH RESTATED PERFORMANCE AGREEMENT
Mr. Toogood motioned to approve the Restated Performance Agreement as submitted in
the board packet available to the public with noted minor spelling corrections in paragraph 2.4.2.
With no discussion or questions from the public and a second from Mr. Leiker, the motion carried
4-0. See the attached draft of the Restated Performance Agreement between WFEDC and Panda
Biotech.
8. ADJOURNED.
Mr. Lane asked for any questions or comments from the public. Being none, he adjourned
the meeting at 3:29 p.m.
Leo Lane, President
WFEDC MINUTES 10/19/2023
PAGE 4 OF 4
ATTACHMENT TO WFEDC MINUTES__
MEETING DATE 10/19/2023
Restated Performance Agreement between the Wichita Falls Economic
Development Corp. and Panda Biotech, LLC for Incentives to Create Primary Jobs
at 8600 Central Freeway North in Wichita Falls, Texas
This Restated Performance Agreement ("Restated Agreement") is made and entered
into as of this day of September 2023 ("Effective Date"), by and between Panda
Biotech, LLC, a Delaware limited liability company ("Borrower" or "Company") and
Wichita Falls Economic Development Corporation, a Texas development corporation
("Lender").
Recitals
A. Lender has loaned to Borrower, and Borrow- borrowed from Lender,
the amount of $1,000,000.00 ("Loan") in accordant- it' - terms of a certain
Performance Agreement between the Wichita Falls Eco • c Deve • •nt Corporation and
Panda Biotech, LLC for Incentives to Create Prima .is at 8600 : •i Freeway North
in Wichita County, Texas dated February 12,2021 -rform. ce A•ree ").
B. The Loan is evidenced, in part, by n Purchase Money Promissory
Note, dated Februaly 12,2021, executed b Borrower . .ayable to the order of the original
Lender in the original principal amount • ` 1 000.01 .te").
C. The Loan is secured by a ce P • ey Security Agreement("Security
Agreement") dated February 1 1, gra ender a first lien purchase money security
interest in specified items of - . • descr • therein.
D. The origi - ' Note was August 6, 2021. On May 2nd,
2022, Borrower and Len•. ed in • . Extension Agreement ("First Agreement"),
which, among of•- s, •ded the maturity date to the earlier or (a) September 1,
2022; or (b) 7 s o 'ng orrower's receipt of project financing further defined
below.
E. tive Au' t 19, 2022, Borrower and Lender entered into the First
Amendment to E• .io reernent which, among other things, extended the maturity
date to the earlier o ber 1, 2022 or 7 days following Borrower's receipt of proceeds
from the project financi ..
F. On December 15, 2022, Borrower and Lender executed a Second Extension
Agreement which, among other items, set a balance for the loan and a payment schedule and
established the Revised Maturity Date of the earlier of(a)December 15,2023 or(b)seven(7)days
following the Borrower's receipt of the proceeds from the Project Financing.
G. Borrower has made eighty (8) payments of$50,000.00 each and five (5)payments
of$70,000 each totaling $750,000.
H. The Borrower and Lender agree that, as of September 1, 2023, the total unpaid
Restated Performance Agreement-Panda Biotech Page 1 of 9
balance of the debt owing by Borrower to Lender under the Note is as follows:
Principal balance: $250,000.00
Accrued interest: $59,623.47
Total $309,623.47 ,
I. Borrower and Lender desire to clarify the relationship between the parties and
establish the terms for moving forward.
Subject to the approval of the City of Wichita Falls City Council and the execution of this
Restated Agreement to memorialize and obligate funds provided he nder in the form to be
provided by the Lender, the parties agree as follows:
1. Definitions. As used in this Restated Agreement, the f i rms have the following
meanings:
"New Position" means a permanent, full-ti ompa y, benefit- ible employee
working at least 37.5 hours per week at the F wh eives full-time wages paid
by Company for a period of at least 6 months at ty. References to "Company"
herein shall also include affiliates of Company. a New Position, an employee
must represent an increase in the total • .vent 1ev employment at the Facility.
Positions shall not be considered New • • the placed occupants of New
Positions or full-time positions from an :die• '-n in the number of full-time
employees in Wichita County. ► - 'ositio t be 'rimary Jobs. Additionally, New
Positions will only be consi' • Posit s to the extent their additions increase the
total employment level . ompa at th- cility at the time of the initiation of this
agreement.
"Payroll St. - - " m-. i) a written statement setting forth the monthly, quarterly
and annual (as . a. - ro he Facility and the amount of wages paid to each full-
time employ- the Facili nd - eh other documentation as reasonably detem l ined to
be necessary he WFED verify the number of New Positions created and continuing
financial condi of the C pany. Such other documentation that Company may be
required to provide e D C shall include compiled income and expense statements for
each quarter, balanc- . effective at the end of each quarter, and income statements,
state unemployment to submissions, and federal unemployment tax submissions. The
aforementioned documents may be redacted, modified, or summarized by Company as
reasonably necessary to protect the privacy of individuals and prevent the disclosure of the
Company's confidential and/or proprietary information.
"Primary Job" means a primary job as defined in Texas Local Gov't Code 501.002.
2. Incentives:
2.1. Loan—WFEDC's Total Maximum Obligation: $1,000,000
Restated Performance Agreement-Panda Biotech Page 2 of 9
2.1.1. Lender previously loaned Borrower. As of the date of this Restated
Agreement, Borrow has made payments and owes principal and interest in the amounts on
recital G. above and in the Repayment Schedule attached hereto as Exhibit A.
2.1.2. Monthly Payments. As further consideration for this Agreement and
the extension of maturity of the Loan, and as a condition to Lender's agreement
herein, Borrower Agrees to pay Lender eight monthly payments of$70,000.00 each
on or before the 15th clay of each calendar month (a "Monthly Payment"),
commencing on September 15, 2023, and continuing through November 15,
2023, with a final payment of $103,080.45 due on December 15, 2023. The
Monthly Payments will be applied by Lender in the folio ' g manner: (a) first, to
fees and expenses reimbursable to Lender under the ter • the Note and Security
Agreement; (b) then, to accrued, unpaid interest on N. and (c) then, to reduction
of principal balance of Note.
2.2 Cash for Jobs -WFEDC's Total Maxi Obligation: ,0 000
Total Maximum Obligation u ion L• 'a off: '.2 350 01
illr
2.2.1 Payment for New Positions i- o Company first entering into a
Payment in Lieu of Taxes agreement with the •• ,•f Wichita Falls.
2.2.2 Subject to the WFE. w k4 axi Obligation, the WFEDC will
pay Company $7,000 for each New ,siti. . -. by Company at Facility. New
Positions eligible to re -' - cash - • •s pa ent must be in existence for a
minimum of six mont •ayme ill be rendered.
2.2.3 Ea• 4 ' - • • mu be filled by one or more employees
continuously during . .-ri•• _ ich funds are requested.
2 en ill only be available for New Positions who are initially
emplo sy Compa .t th- ility prior to August 6,2026.
These f s received pursuant to this Section may be used for any business
purpose i Faci in Wichita County, Texas. Payments will be made after a
presentation . ► many has been made to the WFEDC evidencing the New Positions
have been in pl. . or at least 6 months. Applications for payment may only be made
once every 3 months following start-up. The WFEDC intends to only pay for each New
Position one time. In no event will a position be reimbursable if it merely replaced a
position that was earlier eliminated unless it represents a net increase in New Positions.
Payment obligations will be subject to the obligation of Company to provide Payroll
Statements to the WFEDC as reasonably required by the WFEDC.
2.2.6 The Cash for Jobs incentive available pursuant to this Restated
Agreement may not exceed the amount of the WFEDC's Total Maximum Obligation
stated above.
Restated Performance Agreement—Panda Biotech Page 3 of 9
2.2.7 Should Company repay to the WFEDC the entire loan amount as set forth
in 2.1 of this Agreement on or before January 15, 2024, and subject to the Total Maximum
Obligation upon Loan Payoff, the WFEDC will increase the amount paid to Company for
each New Position employed by Company to $47,000 per New Position.
2.3 Relocation Costs: WFEDC's Total Maximum Obligation: $300,000:
Employee Relocation Assistance: Panda Biotech will be eligible for an employee
relocation incentive if the Company recruits employees from outside of Wichita County.
The Company will receive this incentive if employee(s) relocate to Wichita County
and remains a resident for a minimum of six(6) months. The i• •ntive will be paid to
the Company after the sixth consecutive month of employe ; and upon reasonable
acceptable documentation of employment and residen ' he relocation incentive
will be calculated in the following formula:
Base Salary Range entive Amou. lowable
$31,200450,000 $4,01 .
$50,001-$75,000 $6,000
$75,001+ $8,000
)1011
2.4 Rail Spurs: WFEDC's '4 •.ximu ' ,ligation: S350,000
2.4.1 Subject to the WFEDC's t. • obligation, the WFEDC will
reimburse Company up • " 0,000 al expenses Company paid for rail spur
improvements to the s. locat- on Facility. Such amounts shall be paid
upon request after , idinge ,enceo •enditure.
2.4.2 Borrow will = • o exec' - .n easement to allow WFEDC access to the
rail spur. • em- • ill be provided prior to Lender providing any funds not
already ► o ; • fo - rail spur improvements.
General Co '+ns..
1. Ma I anc Operations. The WFEDC intends for any incentives to be
used to ensure that y continues to operate in Wichita Falls. In addition to other
repayment provisions -rein, if Company ceases operations in Wichita Falls prior to 12
months from the Effective Date of this Restated Agreement, Company shall, within 60
days,repay the WFEDC the full amount of the applicable incentive paid by the WFEDC to
Company.
2. Use of Proceeds. Company agrees to use all of the funds received from
WFEDC pursuant to this Agreement for (or as reimbursement for) the "costs" (as that term
is defined in Tex. Loc. Gov 't Code Ann. § 501.152, as of the date of this Restated
Agreement)of this project related to the creation or retention of primary jobs as provided by
Tex. Loc. Gov't Code Ann. § 501.101.
Restated Performance Agreement-Panda Biotech Page 4 of 9
3. Compliance with Tex. Gov't Code § 2264.001. In accordance with Tex.
Gov't Code §§2264.001 through 2264.101, Company does not and will not knowingly
employ an undocumented worker during the term of this Restated Agreement in violation
of Texas or federal law. If, during the term of this Restated Agreement, Company or a
branch, division, or department of Company is convicted of a violation under 8 U.S.C.
Section 1324a(t), Company shall repay the entire amount of the public subsidy with the
addition of interest at the rate of 5% simple annual interest as required by Tex. Gov't
Code § 2264.053, not later than the 120th day after the date the WFEDC notifies the
Company of the violation.
4. Compliance with Tex. Gov't Code §§ 501.156 rough 501.158. The
parties agree this Agreement complies with Tex. Loc. Gov't :e §§ 501.156 through
501.158,by: (1) being intended to benefit the WFEDC, (2) '•ing that default on this
Agreement is enforceable as provided by Tex. Loc. G. o• 501.157, in addition
to retaining other enforcement remedies provided b exas la , • (3) providing a
schedule as stated in this Restated Agreement for ional jobs an. 'ital investment
as consideration for direct incentives provi erein d providi _ for repayment
obligations.
5. No Waiver. No delay or • • ission by DC in exercising any right that
may accrue to it pursuant to this Restat- • _ .sent wi rate as a waiver of any other
WFEDC right that may accrue pursuant eto.
6. Disputes. In t• ,t of a .ute, (1) neither party will be entitled to
attorney's fees incurred • .aid i he en , ement of any provision of this Restated
Agreement, regardless : y pro ion aut 'zing attorney's fees in Texas Local Gov't
Code §271 .153(a)(3)o ,er • - . ) sole venue for any action based on this
Agreement or pro 'se an , thereto shall be in Wichita County,Texas.
7. e WFED► .11 se the guarantor of Company's success and shall not
be liable fo • failure ts ovide incentives not specifically set forth in this Restated
Agreement. A • •resentat. by WFEDC, the City, or the Wichita Falls Chamber of
Commerce and I ! erning the availability of incentives hereunder are subject to
the approval of the ing bodies entrusted by law to issue said incentives. Company
certifies the truth of the epresentations by its representatives to the WFEDC, the City, and
the Wichita Falls Chamber of Commerce and Industry. Company agrees to release the
WFEDC, the City, and the Wichita Falls Chamber of Commerce and Industry from any and
all claims, suits, and actions for damages, costs, and expenses to persons or property
(collectively "Claims") that may arise out of, or be occasioned by or from any act, error or
omission of the WFEDC, the City, and the Wichita Falls Chamber of Commerce and Industry
in the execution or performance of this contract. The aforementioned release does not
encompass Claims attributable to the negligence or willful misconduct of the WFEDC, the
City, and/or the Wichita Falls Chamber of Commerce and Industry.
8. Term.The Term ofthis Restated Agreement shall be from its execution until the later
Restated Performance Agreement-Panda Biotech Page 5 of 9
of:
a. February 6, 2027, or
b. August 6, 2026, if Company does not hire any employees that
would trigger the Cash for Jobs under 2.2 of this Restated
Agreement.
9. Default. During the Term of this Restated Agreement, Company shall
promptly notify WFEDC if Company learns of the occurrence of: (i) any event which
constitutes an Event of Default; or (ii) any legal,judicial or regulatory proceedings affecting
Company and/or the Facility in which the amount involved is in ex of$50,000 and is not
covered by insurance.
10. Indemnity. Company shall indemnify, s d harmless WFEDC
and the City of Wichita Falls and their respectiv officers, ctors, employees,
representatives and agents (collectively, the "Inde• ied Parties") and against: (i)
any and all claims, demands, actions, or cause action at are ass d against any
Indemnified Party by any person or entity if th- .m, • •nd, action or cause of action
directly or indirectly relates to a claim, demand, a• .r cause of action attributable to
the acts or omissions of Company, any . iliate of Co .ny or any officer,employee or
partner of Company; (ii) any and all c - ' ands, . s or causes of action that are
asserted against any Indemnified Party • -m. •, action or cause of action
directly or indirectly relates to funds rec• - • , ► y pursuant to this agreement,
Company's use of the proc= fund eived pursuant to this agreement or the
relationship of Company - F: pur• t to this agreement; and (iii) any and all
liabilities, losses,costs • pense cludin_ orneys' fees and disbursements) that any
Indemnified Party suffe inc of any of the foregoing; provided,however,
that Company shall have . igation pursuant to this provision to any Indemnified
Party with res. o foregoing arising out of the negligence or willful
misconduct ► ch Ind- ie• . To the extent necessary to provide the Indemnified
Parties fu otection in cord. ce with the terms of this Section, the indemnity
provisions se, h herein s I survive the termination of this Agreement.
11. Even ault. Each of the following events shall be considered an
Event of Default of thi 'estated Agreement:
a. The failure of Company to pay any payment due to the WFEDC pursuant
to this agreement when due and the continuation of such failure for a
period of 30 days after written notice thereof from WFEDC; or
b. If any representation or warranty by Company set forth herein or in any
certificate, report, request or other document furnished pursuant hereto is
incorrect in any material respect as of the date when made or deemed
made; or
Restated Performance Agreement-Panda Biotech Page 6 of 9
c. The failure of Company in its due observance and performance of any
of the covenants or agreements set forth in this Restated Agreement or
any of documents associated with this agreement and the continuation
of such failure for a period of 30 days after written notice thereof from
WFEDC; or
d. If any involuntary case or other proceeding shall be commenced against
Company that seeks liquidation, reorganization or other relief pursuant to
any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver. liquidator, custodian or
other similar official of it or them or any substan ' portion of its or their
property, and if such involuntary case or of roceeding shall remain
undismissed or unstayed for a period of 30 • or if an order for relief
against Company shall be entered in a uc e under the Federal
Bankruptcy Code; or
e. If Company shall commence ,olunta" case or er proceeding
seeking liquidation, reorganize , or ..• relief under any bankruptcy,
insolvency or other similar law n. ereafter in effect or seeking the
appointment of a trust-- receiver, • ator, custodian or other similar
official or shall conse - such or to the appointment of or
taking possession by a suc '.1 1 an involuntary case or other
proceeding commenced .i P t, . ompany shall make a general
assignment bene creditors or shall fail generally or shall
admit in ing i inabili to pay its debts as they become due;or
f. If Comp. sh. 0 days to pay bond or otherwise discharge
an 'udgm. order for the payment of money to the city of Wichita
County in excess of $50,000 that is not otherwise
being sa -d i ordance with its terms and is not stayed on appeal or
otherwise g appropriately contested in good faith; or
g. ere . l be a dissolution of Company or a cessation of business
o. • at the Facility; or
h. If the Company is determined by WFEDC to be continually or repeatedly
violating a City ordinance or state law or regulation related to the operation
of the Facility.
12. Remedies. Following the occurrence of any Event of Default described
above during the Term of this Restated Agreement, the obligations of WFEDC to the
Company shall terminate and the entire amount of the funds provided by WFEDC to the
Company within one year prior to the default shall become immediately due and payable
to the WFEDC if Company fails to cure the Event of Default within thirty (30) days of
receipt of written Notice of Default (the "Notice Period"). Following the occurrence of
Restated Performance Agreement—Panda Biotech Page 7 of 9
any other Event of Default specified in this section, WFEDC may by written notice to
Company and if Company fails to cure the Event of Default within thirty (30) days of
receipt of written Notice of Default: (i) declare the entire amount of any obligation to
the WFEDC then outstanding, together with interest (if any) then accrued thereon, to
be immediately due and payable to the WFEDC, and/or (ii) terminate all obligations of
WFEDC to the Company unless and until WFEDC shall reinstate the same in writing;
and/or (iii) reduce any claim to judgment; and/or (iv) without notice of default or demand
pursue and enforce any of WFEDC's rights and remedies pursuant to this Agreement or any
document ancillary to it.
13. Further approvals required. Any representations WFEDC. the City of
Wichita Falls or the Wichita Falls Chamber of Comme and Industry (or any
representatives of any of the foregoing) concerning the avai of incentives hereunder
are subject to the approval of the governing bodies entrust la issue said incentives.
14. This Restated Agreement and sai achments, if may only be
amended, supplemented, modified, or cancele a dul xecuted w tten instrument
agreed to by both parties.
15. Company's maximum a. • • liabilit er this Restated Agreement to
WFEDC, the City of Wichita Falls, the • s Ch r of Commerce and Industry,
any third party, and/or any Indemnified ection 10 shall not exceed the
amount of funds provided to C• -.ny pur • this 'estated Agreement.
16. Severabili► • ny pro .ion of Restated Agreement that is illegal, invalid or
unenforceable shall be i - tive • nonappealable order,judgment, or decree of
a court of competent juris• , - . the ex - if such illegality, invalidity or unenforceability,
and this Restates - • en .11 be construed and enforced as if such illegal or invalid
provisions has seen . :ine. ein.
17. 1 Partnersh Agency or Third-Party Beneficiaries Intended. Nothing in
this Restated A_ ent wi • construed as creating any form of partnership or joint venture
relationship betwe. le ' es, nor shall either Party be authorized to act as an agent for the
other Party.Nothing . Restated Agreement shall be construed to confer any right, privilege,
or benefit on, or to otherwise create any vested right or third-party beneficiary relationship with
any person or entity not a Party to the Restated Agreement, except as may be provided by the
indemnity and related provisions in Section 10.
18. Entire Agreement. This Restated Agreement, executed of even date herewith,
including Exhibit A, and any other documents referred to herein or therein which form a part
hereof or thereof,contain all agreements between the Parties hereto.The captions used herein are
for convenience only and shall not be used to construe this Restated Agreement.
Restated Performance Agreement-Panda Biotech Page 8 of 9
Wichita Falls Economic Development Corporation
David Toogood, Vice President
Panda Biotech, LLC
Robert W. Carter, Chairman
<1(11CI‘
C40)
Restated Performance Agreement—Panda Biotech Page 9 of 9